One of the biggest problems our civil litigation system has to deal with from the defense perspective, is when Plaintiffs incur hundreds of thousands of dollars’ worth of medical bills in the hopes they can present them to a jury and garner sympathy in the form of their injury allegedly being much worse than it actually was, and hopefully securing a higher pain and suffering award. Should a Plaintiff be permitted to submit the full amount of past medical bills to a jury as part of their case in chief, when in fact governmental benefits are involved such as Medicare or Medicaid, and the actual paid amount is 90% less? Imagine a Plaintiff presenting to a jury $300,000 in past medical bills versus only $30,000, what was actually paid. That can have a significant effect on the psyche of jurors, and potentially sway them to go with a much higher pain and suffering award versus a much lower one.
This issue has recently been addressed by the Second District Court of Appeal in Dial v. Calusa Palms Master Ass'n, Inc., 308 So. 3d 690 (Fla. 2d DCA 2020), and the Fourth District Court of Appeal in Gulfstream Park Racing Ass'n, Inc. v. Volin, 2021 WL 1997278 (Fla. 4th DCA 2021), wherein both DCAs held that when Medicare benefits are involved, the Plaintiff can only get into evidence on their case in chief what was actually paid and tendered by Medicare, not the total amount that was billed.
The Dial and Gulfstream Courts opined that the case of Joerg v. State Farm Mutual Automobile Insurance Co., 176 So. 3d 1247 (Fla. 2015), was distinguishable to the issue at hand as Joerg only dealt with “future benefits provided by social legislation such as Medicare.” Joerg, 176 So. 3d at 1253. The Dial and Gulfstream Courts also noted that Joerg did not implicitly overrule cases barring evidence of the amount a medical provider billed when Medicare settled the debt for less, such as Thyssenkrupp Elevator Corp. v. Lasky, 868 So. 2d 547 (Fla. 4th DCA 2003) and Cooperative Leasing, Inc. v. Johnson, 872 So. 2d 956, 959 (Fla. 2d DCA 2004).
The law in Florida is now crystal clear that when Medicare payments are involved (the same analysis would likely extend to other governmental benefits, such as Medicaid): Plaintiffs are only allowed to get into evidence the amounts actually paid by Medicare, as opposed to the total that was billed. However, both the Dial and Gulfstream Courts have certified the following question of great public importance to the Florida Supreme Court:
DOES THE HOLDING IN JOERG V. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., 176 SO. 3D 1247 (FLA. 2015), PROHIBITING THE INTRODUCTION OF EVIDENCE OF MEDICARE BENEFITS IN A PERSONAL INJURY CASE FOR PURPOSES OF A JURY'S CONSIDERATION OF FUTURE MEDICAL EXPENSES ALSO APPLY TO PAST MEDICAL EXPENSES?
Until the Florida Supreme Court opines on this issue, Plaintiffs will only be able to get into evidence at trial the amounts actually paid by Medicare (and likely Medicaid as well), as opposed to the total that was billed. It will be interesting to see how the Florida Supreme Court comes down on this issue.